Kennedy and Secretary, Department of Employment and Workplace Relations

[2006] AATA 137

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 137

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/652

GENERAL ADMINISTRATIVE DIVISION		)
Re		PATRICK KENNEDY

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date20 February 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.........[Sgd].........

RG Kenny

Member

CATCHWORDS

SOCIAL SECURITY – mobility allowance – start date for payments – allowance not payable prior to date of claim

Social Security Act 1991 s 1035

Social Security (Administration) Act 1999 s11, 16, 42 and Schedule 2

REASONS FOR DECISION

20 February 2006 Mr RG Kenny, Member   

1.      On 14 October 2003, Patrick Kennedy completed a claim for mobility allowance, a form of income support payable in accordance with the terms of the Social Security Act 1991 (the Act).  His application was successful and payments were made to him with effect from 15 October 2003, the day he commenced an employment program with PQ Employment Options.  Mr Kennedy contends that he was qualified to receive the mobility allowance from 1995 but was unaware of the payment and so did not lodge a claim.  On that basis, he sought review of the initial decision.  However, on 29 August 2005, it was affirmed by an authorised review officer and, on 22 September 2005, it was further affirmed by the Social Security Appeals Tribunal.  On 17 October 2005, Mr Kennedy sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Hearing

2.      Mr Kennedy attended the hearing but was not represented.  The Secretary, Department of Employment and Workplace Relations (the respondent) was represented by Ms S Oliver.

Issues and Legislation

3.      The qualifying criteria for the mobility allowance is set out in section 1035 of the Act.  That provision enables a handicapped person who is undertaking gainful employment, vocational training, job search or voluntary work provided the person is an Australian resident and experiences certain nominated difficulties with the use of public transport.  It is not disputed that those requirements were not met by Mr Kennedy on the date of his claim but that, on the following day viz 15 October 2003, he satisfied the requirements. 

4.      The procedures involved in making a claim are set out in the Social Security (Administration) Act 1999 (the Administration Act). Section 11 of that Act requires that a claim be made for the allowance and section 16 of that Act sets out the form requirements for the making of the claim. It is not disputed that a claim was made in the appropriate form on 14 October 2003. Sections 41 and 42 deal with the commencement of the allowance. Those provisions read:

“Commencement

41.(1)   Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.

41.(2)   Unless another provision of the social security law provides otherwise, a concession card takes effect on the person’s start day in relation to the card.

History

S.41(2) inserted by Act No. 80, 2001, by s.4, Schedule 1(14);

Start day

42. For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.”

5. Under clause 3 of Schedule 2 of the Administration Act, the start date for payment of the allowance is the date of the claim if the person was qualified for the payment on the day when the claim was made. Under clause 4 of Schedule 2 of the Administration Act, where a person is not qualified on the date of the claim but becomes qualified within 13 weeks of claiming, the claim is taken to have been made on the first day on which the person qualified for the payment.

Discussion

6.      On the day of his claim, Mr Kennedy was not engaged in employment, either gainful or voluntary, vocational training or job search activities and, therefore, was not qualified for the mobility allowance on that day.  However, he became qualified on the following day when he entered into the program with PQ Employment Options.  Clearly, this was within 13 weeks of the date of the claim and it follows that the earliest date from which this claim could be paid is 15 October 2003.  It may well be the case that the qualification requirements for the mobility allowance were met by Mr Kennedy prior to 14 October 2003 and, indeed, it may be that he met those requirements in the period from 1995 onwards.  However, the legislation is unequivocal in its requirement that a claim must be made.  In this case, no such claim was made until 14 October 2003.

Decision

7.      The Tribunal affirms the decision under review.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         J Lauriston

Administrative Assistant

Date/s of Hearing  6 February 2006
Date of Decision  20 February 2006
The Applicant was unrepresented
For the Respondent                  Ms Oliver, Departmental Advocate